The NSA Claims It Is "Too Big to Comply" With A Court Order

The fact that that the NSA is now claiming it is “Too Big to Comply” with a court order is an extremely important revelation since it further proves that the super rich and super powerful are in no way shape or form subject to the same laws as the rest of us. The mega banks are “Too Big to Fail,” multi-national corporations are “Too Big to Pay Taxes” and the government is just “Too Big to be Useful.” The rule of law no longer exists in America (remember Jon Corzine), which in turn means there is no longer a functioning society. This may not be obvious to most people at the moment, but it will become painfully clear to everyone in time unless these trends are reversed.

The specific incident I have chosen to highlight to demonstrate this point today relates to the NSA’s claim that it cannot comply with a court order because it’s essentially too complex and compliance will damage “national security.”

Of course, any mature civilization exposed to the unconstitutional activities of its intelligence agencies should find such a claim extraordinarily suspect. After all, the NSA can just shout “national security” and do absolutely anything it wants unless we collectively grow a pair and say no.

In a remarkable legal filing on Friday afternoon, the NSA told a federal court that its spying operations are too massive and technically complex to comply with an order to preserve evidence. The NSA, in other words, now says that it cannot comply with the rules that apply to any other party before a court — the very rules that ensure legal accountability — because it is too big.

The filing came in a long-running lawsuit filed by the Electronic Frontier Foundation challenging the NSA’s warrantless collection of Americans’ private data. Recently, the plaintiffs in that case have fought to ensure that the NSA is preserving relevant evidence — a standard obligation in any lawsuit — and not destroying the very data that would show the agency spied on the plaintiffs’ communications. Yet, as in so many other instances, the NSA appears to believe it is exempt from the normal rules.

For an agency whose motto is “Collect It All,” the NSA’s claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

Bingo. The whole system is broken. Completely and totally broken.

As Brett Max Kaufman and I have written before, our system of oversight is broken — this is only the latest warning sign flashing red. The NSA has grown far beyond the ability of its overseers to properly police its spying activities. That includes the secret FISA Court, which has struggled to monitor the NSA’s compliance with basic limits on its surveillance activities. It includes the congressional oversight committees, which operate with too little information and too often appear captive to the interests of the intelligence community. And, now we are to believe, it includes the public courts as well.

No intelligence agency should be too big to be accountable to the rule of law.

In a hearing Friday, U.S. District for the Northern District of California Judge Jeffrey S. White reversed an emergency order he had issued earlier the same week barring the government from destroying data that the Electronic Frontier Foundation had asked be preserved for that case. The data is collected under Section 702 of the Amendments Act to the Foreign Intelligence Surveillance Act.

The complexity of the NSA systems meant preservation efforts might not work, he argued, but would have “an immediate, specific, and harmful impact on the national security of the United States.” Part of this complexity, Ledgett said, stems from privacy restrictions placed on the programs by the Foreign Intelligence Surveillance Court.

The government’s explanation raises more concerns, said Cindy Cohn, EFF’s legal director. “To me, it demonstrates that once the government has custody of this information even they can’t keep track of it anymore even for purposes of what they don’t want to destroy,” she said in an interview.

“With the huge amounts of data that they’re gathering it’s not surprising to me that it’s difficult to keep track– that’s why I think it’s so dangerous for them to be collecting all this data en masse,” Cohn added.

But it’s unclear just how much of the data EFF seeks has already been destroyed. In a brief filed with the court in May, EFF said there was “no doubt” that the government had already destroyed evidence related to the claims.

It is precisely because of the issues presented in this article that we must radically move away from overly centralized political, social and economic structures. The tools for decentralization are being developed as we speak, and I look forward to a much brighter and freer future.